Archibald Douglas, Esq. in 1st and 2d Appeals v. Earl of Selkirk in second Appeal [1777] UKHL 2

UKHL
Archibald Douglas, Esq. in 1st and 2d Appeals v. Earl of Selkirk in second Appeal
[1777] UKHL 2 · 1777-03-08
Subject_ Entail — Clause of Return — Prohibitory Clause — Fiar — Negative and Positive Prescription — Sasine — Revocation — Conveyance — “Heirs whatsoever” — Competency of Parole to Explain this Clause — Heir Entitled to Challenge on Deathred .—Douglas and her son, the claimant. Held, in the Court of Session (1.) That the clause of return, and the prohibitory clause in the entail, did not prevent Marquis James, who was fiar, from gratuitously altering the order of succession. (2.) That the clause of return, and prohibitory clause, were cut off both by the negative and positive prescription, on the title and possession had thereon under the charter 1698. (3.) That the deed of nomination of 11th March 1699, and subsequent deed of 28th October 1699, is the nomination of heirs referred to in the charter 1707, and consequently the Earl of Selkirk's claim, under the deed 9th March 1699, was ineffectual, and lost by the negative prescription. (4.) That the objection to the sasine 1707, on account of the witnesses not signing each page of the deed, was not good in this case. (5.) That the possession had, on this charter and sasine, entitled Archibald Douglas, the present claimant, to the benefit of the positive prescription, against the restrictions in the contract of marriage 1630, and the deed of nomination, dated 9th May 1699. (6.) That the deed 1744 was no proper or legal settlement of the land estate, but a revocation or deed merely of a testamentary nature, incapable of conveying land estate; and that the appellant the Duke of Hamilton has no claim under it; and further, that the marginal note, consisting of the words “ and female and female ” as it appears upon the face of the said original deed of October 1744; and the words “ after my death after my death ” made no difference in the question. (7.) That by the legal import of the terms “ heirs and assignees whatsoever heirs and assignees whatsoever ,” in the Duke of Douglas' contract of marriage 1759, heirs of line were meant, and Archibald Douglas, as heir of line, was called to succeed in preference to the nearest heir-male. (8.) That parole evidence was incompetent to give a different meaning to this clause of destination. (9.) And that it was incompetent for the Duke of Hamilton or Earl of Selkirk to object deathbed to the deed 1761, executed by the Duke a few days before his death, this deed being executed in virtue of a reserved faculty, and they not being in the position of heirs entitled to challenge on that ground. Affirmed in the House of Lords.The ancient investiture 1630 restricted the destination of the family estates of Douglas to the heirs-male of Archibald Lord Douglas' body;
“whom failing, to return to the Earl of Angus his father, and his heirs-male and of tailzie,”
with prohibition to alienate or to contract debt; but no prohibition against altering the order of succession. Several deeds were executed by Marquis James Douglas, one of 9th March 1699, which confined the succession to heirs-male, and favoured the succession of the Earl of Selkirk as such. A subsequent deed 11th March 1699, introduced heirs-female, together with one executed on 28th October 1699, and others of 1716, 1718, and 1726. He afterwards revoked these by deed 16th October 1744, and declared that his estates and honours should descend to the heirs of ancient investitures. The Duke of Douglas (the Marquis son) afterwards executed a deed or contract of marriage, 1759, which called, after heirs-male of his own body, “ his own nearest heirs his own nearest heirs and assignees assignees whatsoever.” On deathbed he executed a deed (1761) calling the heirs whatsoever of his father, which included Lady Jane

Footnote

* There are two separate appeals here:—the first, between Mr. Douglas and the Earl of Selkirk, in which the latter was appellant, and disposed of 8th March 1777; the second, between the Duke of Hamilton and Mr. Douglas and Earl of Selkirk. They are placed together, as they involve the same narrative of fact and law.

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The decision in the Douglas cause, as reported, ante ante p. 143, established the right of Archibald Douglas, Esq. to the status of Lady Jane Douglas' son, by her marriage with Colonel Sir John Stewart; and, of consequence, his right to succeed as heir of line, or heir-female, under the destination of “heirs whatsoever,” of Marquis James, his grandfather.The Ducal title became extinct by the death of the Duke of Douglas. The other titles and honours, viz. The Marquisate of Douglas and Earldom of Angus, devolved on the Duke of Hamilton, as nearest heir-male of the family; *

Footnote

* Mr. Douglas was afterwards elevated to the Peerage, as Baron Douglas of Douglas, in 1790.

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The Duke of Hamilton claimed the estates of Angus, Dudhope, Both well and Wandell, in the character of heirmale general and of provision.Archibald Douglas claimed the whole in the character of heir of line, and likewise of entail and provision to the Duke of Douglas, and to James, Marquis of Douglas, the Duke's father.The Earl of Selkirk claimed the Earldom of Angus and Dudhope, as heir of entail and provision.

The state of the titles to the honours and estates stood thus:—

William, Earl of Angus, in 1601, enjoyed the estates of Douglas and Angus, under a simple destination to heirs-male. The estates were known afterwards under the general name of Earldom of Angus.He married twice. By his first marriage he had two sons, Archibald Archibald and James James , and three daughters. By his second wife he had three sons,—William, Earl of Selkirk, afterwards Duke of Hamilton, (from whom the Duke of Hamilton and Earl of Selkirk, two of the claimants, are descended),—George, Earl of Dumbarton, and James, and several daughters.In 1630, Archibald Lord Douglas married Lady Anne Stewart, on which occasion, his father his father , Earl William, became a party to his marriage contract, and bound himself, in consideration of the tocher given by the Lady, “to infeft and seize by charter and sasine, titulo oneroso titulo oneroso , in due and competent form, the said Archibald Douglas, and the heirs-male lawfully gotten, or to be gotten of his own body; which failing, to return to return to the said noble Earl of Angus, his father, and his heirs male and of tailzie contained in the infeftment of the Earldom of Angus, and their assigns whatsoever, under the reservations and other provisions and restrictions after mentioned.” In this deed the Earl reserves his own liferent, and it contains a clause prohibiting the said Lord Archibald Douglas and his foresaids, “to sell, annalzie, wadset sell, annalzie, wadset , dilapidate nor put away any of the lands and others above written, nor to contract debt, nor do any other deed whereby the same may be evicted, by apprizing or any manner of way, from his foresaids, without the special advice and consent of the said noble William, Earl of Angus, during his life, first had and obtained.”

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Mar. 22, 1631.

April 29, —

Nor did the charter and infeftment which followed thereon, contain the prohibitory clause, although the charter repeated the clause of return. It was upon this deed that the Duke of Hamilton founded his claim.In 1633, Earl William, the father, was created Marquis of Douglas, upon which event, his son, Archibald Lord Douglas, took the title of the Earl of Angus. Of the latter's marriage with Lady Anne Stewart there was issue one son, James James , afterwards Marquis James Douglas. But before he succeeded, several deeds were executed. In the first place, upon the death of Lady Anne Stewart, the Earl of Angus married a second time, and on this occasion, and without without the consent of his father, he settled the estates of Bothwell and Wandell, part of the family estates, on the heirs-male heirs-male of the marriage, under condition of return return as aforesaid,—failing heirs male. Of this marriage, there was one son, Archibald Archibald , afterwards created Earl of Forfar.Archibald, Earl of Angus, died before his father Marquis William William , who observing that under the above deed of his son, the conditions of the entail, clause of return return , and prohibitions, were violated and disregarded by him, executed a new deed, conceiving the estate as still in him in fee, whereby “he disponed the estate to the said James (his grandson) now Earl of Angus, and only son of the first marriage of the said Archibald, Earl of Angus, deceased, and the heirs-male of his body; whom failing, to the heirs-male of his father's body; whom failing, to the heirs male of the Marquis' own body; whom failing, to return to the Marquis, his heirs male and of tailzie, contained in their infeftments of the Earldom of Angus, and their assigns whatsoever.” There was a general reference to the conditions and provisions in the contract of marriage 1630, and the object of the deed was to place the settlement of the succession on that deed that deed . On this deed the Earl James was infeft, bat the prohibitory clause in the deed was not inserted.1660.Of this date, Marquis William died, and was succeeded by the said James, who became Marquis James Douglas, and who made up his titles by special service, not under the last deed of his grandfather, but to his own father, as his heir male, on the assumption, that he was infeft in the fee of the estates by the marriage contract in 1630. His retour between the prohibitory clauses in the latter deed, in order to protect against the debts which his father had contracted.

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Marquis James, out of respect to his father Lord Archibald's intentions towards the issue of his second marriage with Lady Wemyss, and agreeably with, and in implement of the obligation undertaken by his father in that contract of marriage, disponed to the Earl of Forfar, his brother consanguinean, and the heirs male of his body, whom failing, to return to the said Marquis' heirs male and successors whatsoever, the two baronies of Bothwell and Wandell, upon which he was infeft.It was upon this, Marquis James' right, that Archibald Douglas, Esq. founded his claim, contending that he had in him the absolute fee of the whole estates, which not only entitled Marquis James to make the deeds after mentioned, but also to make the estates descend to him as heir of line, in preference to heirs male heirs male , there being no prohibition in the previous investitures against altering the order of succession.Marquis James was twice married. Had issue by the first, who died unmarried. By the second he had issue, a son, Archibald, the late Duke of Douglas, and Lady Jane Douglas, who was the respondent Archibald Douglas' mother.1670 and 1692.By his two marriage setlements with these ladies respectively, the first 1670, the second in 1692, Marquis James conveyed “to his heirs male heirs male of the marriage, whom failing, to his other heirs male to be procreated of any other marriage; which failing, to Archibald Earl of Forfar (his brother) and to the heirs male of his body; which failing, to William Duke of Hamilton, his uncle, and to any son procreated, or to be procreated of his body, not succeeding to the estate and Dukedom of Hamilton, whom he shall design and nominate by a writ under his hand; and failing of any such designation, to the second son of the said Duke of Hamilton, and the heirs male heirs male of his body not succeeding to the estate of Hamilton; which failing, to the third son of the Duke, &c., whom all failing, to his own nearest lawful heirs and assignees whatsoever.” He reserves power to alter, and to tailzie.From the whole of these deeds, as well as the one quoted below, and every act and deed up to its date, it was contended by the Duke of Hamilton that a manifest preference was given by the investitures to the heirs male, to the exclusion of heirs female, or heirs of line; and as Archibald Douglas was only an heir female, being the son of Lady Jane Douglas, of her marriage with Sir John Stewart, he was not entitled to succeed.

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Mar. 9, 1699.But Marquis James executed in 1699 another deed, resigning the Earldom of Angus and the other family estates (Dudhope excepted) “to his son Archibald, and the heirs male of his body; which failing, to Archibald Earl of Forfar his brother, and the heirs male of his body; which also failing, to Lord Basil Hamilton, second son to the deceased Duke of Hamilton, and the heirs male of his body; which also failing to second son, to James now Duke of Hamilton, and the heirs male of his body; which failing, to the next lawful son of James Duke of Hamilton, and the heirs male of his body; which all failing, to his next heirs whatsoever, heritably and irredeemably.” He bound himself never never to revoke revoke or alter alter the tailzie above mentioned. And it was under this title that the appellant, the Earl of Selkirk, claimed as the younger branch of the Duke of Hamilton's family here designated. The only power reserved being to grant provisions.But after this date, a new line of succession was introduced, by admiting heirs female.Mar. 11, 1699.This was done by a deed, whereby he nominated and appointed, that “failing the heirs male of his own body, the eldest heir female of the body of his son, the said Lord Angus, and the heirs whatsoever of the body of the eldest of the said heirs female, which failing, the eldest heir female of his own body; which failing, the said Archibald Earl of Forfar his brother, and the heirs male of his body; which failing, the nearest heir male whatsoever; which failing, his heirs or assignees whatsoever should succeed, failing heirs male of his body, as said is, in the Earldom of Angus and others, in the deed 1697.” This deed also dispones Dudhope to the same series of heirs, and likewise the titles and honours of the family.Under his deed the issue of Lady Jane Douglas, on failure of her brother the late Duke of Douglas without heirs male, was entitled to succeed. Whereas, the Earl of Selkirk contended, that as this deed was in fraud of the marriage contracts, executed by Marquis James in 1670 and 1692; and also of the tailie of 9th March 1699, he had power to execute the same, and are therefore invalid, and that the deed he made on 11th March 1699, in favour of heirs female was impetrated from him while in sickness.Oct. 28, 1699.But this deed itself was revoked by a revocation or declaration executed on 15th June 1699, which was again superseded and altered in its turn by Marquis James executing an entail, of this date. It recites the disposition to his

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Feb. 23, 1700.1703.1707.The Marquis James died of this date, leaving his son Archibald, the late Duke of Douglas, and Lady Jane Douglas, his only daughter, the son being created a Duke of this date, although then a minor. He completed this title by charter and sasine in 1707, which refer to the deed of nomination of heirs on 11th March 1699.1744.1754.Aug. 6, 1759.July 11, 1761.

July 21, —

The Duke had no issue of his marriage. By deeds executed in 1716, 1718, and 1726, he confirmed the settlements of his estates as above, namely, failing heirs of his body, he settled them upon his sister, Lady Jane and her heirs, and certain other substitutes. He afterwards revoked these settlements by a simple deed of revocation, 16th October 1744, declaring, in the same deed, that on failure of heirs male and female of his body, his lands and estate, and heritable offices, were to descend to, and continue with the heirs of the ancient rights and investitures of the same; and therefore he revoked and recalled all and whatsoever deeds and settlements preceding this date. The Duke of Hamilton alleged that this deed was a settlement in favour of heirsmale, and gave him a title to reduce the deed after mentioned, on the head of deathbed. Again, in October 1754, after Lady Jane's death, he executed a deed, settling his estates, failing heirs male of his own body, upon his next heir male, the Duke of Hamilton, whom failing, the heirs female of his body. This deed was confirmed by

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Archibald Douglas, Esq. maintained that the investitures since Marquis James' death in 1700, with one single exception, down to the Duke of Douglas' death in 1761, expressly bore the estates as conveyed, on failure of heirs male of his body, to the heirs female, or heirs whatsoever of their body; and that he, as heir of line of Marquis James, and heir female, on failure of heirs male of his body, and as heir whatsoever of Lady Jane Douglas, was entitled to the whole estates. That the only exception to this unbroken title, upon which the Duke possessed for sixty-one years, was the deed of revocation of 1744: but as this deed was a mere declaration, it could not have the effect of a deed conveying heritable estates, nor even of a settlement inferring an obligation to implement.Sir George Mackenzie, p. 458; Dirleton, voce voce Return; M'Dowal, vol. 1, p. 592, and 595; Erskine, p. 370. Waddell v. Waddel , Jan. 16, 1739, voce voce Minor.But the Duke of Hamilton entered more fully into the discussion. He contended, 1st, on the investitures, that by the clause of return, and prohibitory clause in the contract of marriage 1630, the heirs male of Archibald Earl of Angus' body were disabled from gratuitously preventing the return stipulated in that contract to Marquis William and his heirs male, and from altering the order of succession thereby established. Succession to land estates may, by the law of Scotland, be settled in three different ways, 1. By simple

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2. Prescription. Nor can the clause of return in the contract 1630 be lost by the negative prescription. No doubt, in the charters 1698 and 1707 this clause of return is not repeated. But the heirs of the contract 1630 had no occasion to challenge this, so long as no positive act or deed was done to intercept their right of succession in those events in which the return was to operate in their favour. And though it should be admitted that one or other of the nominations of 1699 was referred to in the charter 1707, and made a part of it, yet the positive prescription could never begin to run in favour of such deeds, nor the negative prescription against the titles of the heirs male to challenge them, till by some overt act, it was published and known that such deeds had been granted. Further, the Duke, by these nominations

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3. Objection to sasine. The sasine on the deed 1707 was written book ways, and the witnesses not having signed each page, as directed by the act 1686, the Duke of Hamilton further contended that it was null, and consequently that no prescription could be founded on said charter and sasine.4. Point of revocation. He further insisted, that the revocation 1744, which remained uncancelled and subsisting at the Duke of Douglas' death, and which proceeds on this narrative:
“To the end that failing of the heirs of his own body, his lands and estate, heritable offices and jurisdictions, may descend and continue with the heirs of the ancient rights and investitures of the same,”
ought to be construed as a deed of settlement; or at least, as an indication of the Duke's will with respect to the person entitled to take his succession under the penult branch of the contract of marriage 1759, viz. the heirs whom the Duke had named or should name, &c., because, when a faculty is reserved to appoint heirs, no verba solemnia verba solemnia are necessary for exercising that faculty. It is enough if the person's will be signified by any authentic deed. Vide Vide Henderson, 31 January 1667, voce voce Testament; Sir John Kennedy of Gulzean v. Arbuthnot , No. 22, p. 1681; Simpson v. Barclay , see Append. 11th Dec. 1751.5th Point. Construction of “ heirs whatsoever heirs whatsoever ,” and competency of proof to explain this term. Laying aside the deed 1761, as executed on deathbed, and if the succession was to be regulated by the immediate preceding deed, viz., the contract of marraige 1759, the person entitled to take the succession, under the last substitution of heirs and assignees whatsoever in said contract, was the heir of the former settlements and investitures, which his Grace intended to be the heir male, and, in aid of this construction, a condescendence of facts was given in for him, tending to shew that the Duke of Douglas had no intention, under this termination of the settlement in the contract of marriage to call his heir of line; that the person in view must have been the heir of the ancient investitures, and of the honours and dignities of the family. And of this condescendence a proof was craved. In support of this proof the Duke of Hamilton

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The Duke of Douglas had no intention to call his heir of line, but all along meant to favour the heir of his honours and ancient investitures, appears from the whole tenor of his settlements, and from the circumstances of his family; and

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To this it was answered by Mr. Douglas the respondent.1. That as the respondent was the heir of line of the Douglas family, he has favour on his side; and the presumption of law is for him, agreeable to the opinion of Lord Stair, Title Heirs, § 35, and Sir Thomas Craig, lib. 2, dieg. 16, § 12. The clause of return, in this case, is merely a substitution. The words “which failing to return” have no charm in them. The effect would have been the same, had the words been “which failing, to the granter and his heirs.” And, accordingly, in the charter following on the contract, the words are “Quibus deficien præfato prædelecto,” &c. The person in whose favour a return is stipulated, takes the estate by a service, as heir to the person last infeft, is subject to his debts and deeds, and is, in every respect, a substitute. Such returns, therefore, receive their effect not from any particular form of words used in the deed, but from the nature of the deed in which they occur. When a man freely and gratuitously alienates his estate, or any part of it, to a stranger, from himself and proper heirs, as all donations are strictly to be interpreted, he is not understood to grant more than he has thought proper to give in express words, and when, in such a deed, he stipulates a return of the estate to himself, in any particular event, though conceived in the form of a simple substitution, he thereby gives away his estate sub modo sub modo ; and it becomes an implied condition in the grant, the granter or his heirs shall not disappoint the return to the granter or his heirs, when the same opens to them in the course of succession; in the same way as in the case of mutual tailzies, or tailzies for onerous causes, though they contain no express prohibitory clause, it is implied in the transaction itself, that the succession cannot be disappointed by any gratuitous deed. But, for the same reason, and upon the same principles, where a man, under a

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2. Prescription. The next question was, Whether, supposing the clauses in the contract 1630 amounted to an express prohibition to alter the order of succession, the same were not cut off and at an end, both by the negative and positive prescription?The prescription in this case is founded in the express words, both of the acts introducing the negative prescription, and in the act 1717 concerning the positive prescription. The Duke of Douglas was infeft in the estate of Angus, as far back as 1698, upon a charter under the Great Seal, proceeding upon the disposition 1697, containing no prohibition or clause of return or other limitation whatever. In like manner, the charter of infeftment 1707, referring to a nomination of Marquis James, in favour of a different series of heirs, contains no limitation or clause of return in favour of collateral heirs male. Upon these titles the Duke possessed his estate, without molestation or challange from the family of Hamilton, or any other heirs male, who would have been entitled to the succession, upon the marriage contract 1630. Such titles and possession, undisturbed for a half century, were sufficient to secure the Duke's rights under those infeftments, as an unlimited fee by prescription, and to work off the fetters of any former tailzies or limitations. This is now an established point by decisions: case of Auchlinkart, 31st Dec. 1695, voce voce Prescription, M.; Mackerston, 10th July 1739, Ibid; Douglas of Kirkness, 3d Feb. 1753, M. 4350; Ayton v. Monypenny , voce voce Prescription.3. Objection to sasine. The statute 1686, on which the objection to the sasine 1707 is founded, seems to have been altered by the act 1696; and accordingly the objection has been repelled by the Court of Session as often as it has occurred. And upon a search, it has been found that, in practice, since the year 1696, the bulk of the sasines in Scotland are only signed by the witnesses on the last page, agreeably to the provision of the statute 1696.4th Point. Revocation 1744. Supposing this writing could be construed as a deed of settlement, it does not appear upon what ground it could be a settlement in favour of the Duke of Hamilton. From the tenor of the deed itself,

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5. The words “nearest heirs whatsoever,” are technical words well known in law, and which have received a fixed and determined signification, denoting the heir of line, or heir general; and, though in some cases ex prœsumpta voluntate ex prœsumpta voluntate , arising from the face of the deeds themselves, “heirs whatsoever” may receive a different construction; yet it is clear that in a settlement of heritable succession, they can only be construed to mean the heir of line. And no parole proof can be received to impress a different construction on the deed than that which it legally bears. The deed itself is not ambiguous. It is clear and intelligible. Nor are the words heirs whatsoever ambiguous terms. They have a known legal signification; and it is totally incompetent, and would be of dangerous consequences, to allow such to be affected by the testimony of witnesses.Dec. 9, 1762.Several of the above points also occurred in the question between the Earl of Selkirk and Mr. Douglas, and the same arguments used. A separate plea was further insisted in by the

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to the late Duke's disposition of 11th March 1761, as they are not called to the succession by the last feudal investiture 1707, nor by the contract of marriage 1759; therefore repel the reasons of reduction.”
“Find, that neither the clause of return or substitution, nor the prohibitory clause in the contract of marriage 1630, disabled Marquis James James from gratuitously altering the order of succession appointed by the said contract: And find that the Duke of Hamilton's claim, founded on the said clause of return and, prohibitory clause, is cut off by the negative prescription, and also by the positive prescription, upon the title of the charter and infeftment, anno 1698, and possession following thereon: Find the deed of nomination of 11th March 1699, ratified by the subsequent deed, dated 28th October 1699, is the nomination referred to in the charter anno 1707; and that the Earl of Selkirk's claim, founded on the deed executed by the Marquis on 9th March 1699, and the deed 16th June following relative thereto, is lost by the negative prescription; Repel the objection to the sasine anno 1707; and find that the charter and sasine 1707, and possession of the late Duke following there on, entitle Archibald Douglas to the benefit of the positive prescription against the conditions and restrictions contained in the contract of marriage 1630, and the deed dated the 9th May 1699. Find that the deed of revocation 1744 was no proper or legal settlement of the lands and estate belonging to the late Duke of Douglas. Find that from the legal import of the clause ‘ heirs and assigns whatsoever heirs and assigns whatsoever ,’ in the late Duke of Douglas, his contract of marriage dated in the year 1759, Archibald Douglas, as heir of line, is called to succeed to the Duke in his whole estate, including the baronies of Bothwell and Wandell: And find, that the parole evidence offered by the Duke of Hamilton and Earl of Selkirk, to the effect of giving a different meaning to the said clause, is not competent: And also find that it is not competent to the Duke of Hamilton or Earl of Selkirk to object deathbed

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The Duke of Hamilton put in a reclaiming petition, but his Grace having died before the cause was advised, the guardians of the Duke allowed the matter in the meantime to drop.July 19, 1769.The Earl of Selkirk also reclaimed; but, upon advising his petition and answers, the Court adhered, in so far as respected him, as follows:—
“Find that the deed of nomination of the 11th March 1699, ratified by subsequent deed, dated the 28th September 1699, is the nomination referred in the charter 1707; and that the Earl of Selkirk's claim, founded on the deed executed by the Marquis on the 9th March 1699, and the deed of the 15th June following relative thereto, is lost by the negative prescription: Found that the charter and sasine anno 1707, and possession of the late Duke following thereon, entitles Archibald Douglas to the benefit of the positive prescription against the conditions and restrictions contained in the deed dated the 9th of March 1699: Found that, from the legal import of the clause, ‘heirs and assignees what-somever,’ in the late Duke of Douglas, his contract of marriage dated in the year 1759, Archibald Douglas, as heir of line, is called to succeed to the said Duke in that part of his estate claimed by the Earl of Selkirk; and that the parole evidence offered by the Earl of Selkirk, to the effect of giving a different meaning to the said clause, is not competent: And also found that it is not competent to the Earl of Selkirk to object deathbed to the late Duke his disposition of the 11th of July 1761, as he is not called to the succession by the last feudal investiture anno 1707, nor by the contract of marriage anno 1759; therefore the Lords adhered to their former interlocutor, in so far as concerned the Earl of Selkirk, and refused the desire of his petition.”
Mar. 27, 1776.The Earl of Selkirk, after acquiescing in these judgments for five years, entered his appeal before the House of Lords, in November 1774; and the cause having come on for hearing of this date, upon its being represented that a petition was presented by two of the guardians of the Duke of Hamilton, then a minor; setting forth:that the interest of the Duke of Hamilton, their pupil, may, without having an opportunity of being heard, be materially affected by the judgment in such cause; and that they were resolved to prosecute and follow forth the Duke's claim to the Duke of Douglas' succession, which had been only delayed, on account of the nonage and absence of their ward, and therefore praying for such order as may prevent the Duke's claim from being injured.”
“That they had discovered from the printed cases in a cause appointed to be heard before your Lordships, wherein the Earl of Selkirk is appellant, and Archibald Douglas, Esq. and others, are respondents,

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Whereupon the House of Lords ordered the petitioner's counsel to be heard at the bar, along with counsel of the Earl of Selkirk, if they thought fit. The petitioner's counsel were accordingly heard. Whereupon, as the petitioners contended that they were ready to take out brieves and to proceed with all diligence to assert their claim, the Lords ordered the consideration of this appeal to be adjourned sine die sine die .That the decision of the question in Scotland might not be delayed, an action of reduction was raised at the suit of the respondent, against the appellant, the Duke of Hamilton and his guardians, of all right or claim his Grace might have to the estates in question, and containing a conclusion declaratory of the respondent's right thereto, which was served against him upon the 18th April 1776. To this the Earl of Selkirk was cited as a party.The Duke of Hamilton, on his part, took out brieves to be served heir of provision to the Duke of Douglas, and upon 15th May 1776, executed three different summons of reduction and declarator, one as to the estate of Angus, another as to Dudhope, and the third as to Bothwell and Wandell; in which the Earl of Selkirk and the respondent were called as defenders.Dec. 19, 1776.The Court of Session having conjoined all these processes, and again considered the whole cause, “Find that Archibald, late Duke of Douglas, was unlimited fiar of his whole estate in question, including the baronies of Bothwell and Wandell. That under the clause of substitution, to his ‘ heirs and assignees whatsoever heirs and assignees whatsoever ,’ in his contract of marriage, executed in the year 1759, the said Archibald Douglas, now of Douglas, as heir of line, was called to succeed to the said Duke in his whole estate, including the baronies of Bothwell and Wandell as aforesaid. That the whole parole evidence offered by the Duke of Hamilton, to the effect of giving a different meaning to the said clause in the contract of marriage, is neither competent, nor the condescendence of facts relevant, and therefore refuse to allow any such proof; repel the whole other defences pleaded

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Mar. 5, 1777.The appellant again applied to the Court of Session, by reclaiming petition, in which he confined himself entirely to the argument upon the deed of revocation, and praying the Court, “to find that by the deed 1744, and contract of marriage 1759, heirs-male whatsoever were called to the succession, before ‘heirs and assignees whatsoever,’ and that therefore the petitioner had a good title to reduce the deed 1761, in favour of Mr. Douglas, executed by the Duke on deathbed.” But, on advising, the Court adhered.The Duke of Hamilton then took an appeal to the House of Lords.In the meantime counsel were again heard in Lord Selkirk's appeal against the interlocutors of 9th December 1762, and 19th July 1769.In this appeal, it was pleaded for the Earl of Selkirk pleaded for the Earl of Selkirk , 1st, As against the Duke of Hamilton's claim, that he was entitled to be preferred, because by the deed, 9th March l699, James, Marquis of Douglas, had full power to substitute heirs-male to the heirs-male of his own body, under such conditions as he thought proper, which is proved by the marriage contracts 1670 and 1692, and by the power and faculty reserved in the disposition 1697, and charter 1698. Nor was he restrained from so doing by the clause of return in the contract of 1630, nor the prohibitory clause therein, and possession having followed on charter and sasine for more than 40 years, in consequence of the deed of nomination 1699; all challenge was cut off. Nor is the Duke of Hamilton entitled to plead the deed of revocation 1744, as a settlement by the late Duke of Douglas, in favour of the heirs of the “ancient rights and investitures,” because it was not a settlement conveying the lands, nor even one inferring

Footnote

* Note .—“At advising this cause, the Lords were unanimous; and rested their opinion chiefly upon the positive prescription creating the late Duke unlimited fiar of his whole paternal estates, (for as to his own purchases there was no question,) and on the substitution of the contract of marriage 1759, calling his heirs and assignees whatsoever to the succession. As to the first, the decision in the case of Mackerston, and other like decisions, were highly commended and approved of. And as to the second, the decision in the case of Waygateshaw, allowing parole evidence to explain the words of a settlement, in themselves sufficiently clear, was greatly condemned.” Brown's Supp. “Tait,” p. 467.

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Pleaded for Mr. Douglas Pleaded for Mr. Douglas .—That the deed of March 1699, which preferred Lord Forfar, and certain younger sons of the family of Hamilton, to his own two daughters and lineal descendants, was obtained by undue means and by fraud. That, besides, even if a fair deed, it was effectually revoked by the deeds of 11th March and 23d October 1699, and as the Marquis was an unlimited fiar, he had full power to execute such deeds, and consequently power to revoke it. But even if this deed of 9th March was such as could not be revoked by the Marquis, yet his son, the late Duke of Douglas, was not thereby debarred from altering the order of succession, as the Marquis had reserved no power to lay his son, the fiar, under any limitation. The deed of 11th March is now confirmed by the negative prescription. Besides, by the terms used in that deed, “heirs whatsoever,” Lord Basil Hamilton, in whose right the Earl of Selkirk claims, was not meant. By the term “his own nearest

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That as the deed of entail 1761 was executed in virtue of a reserved faculty to nominate heirs, the plea of deathbed could not apply to that deed, as having been executed on deathbed. The Duke had reserved power in his contract of marriage to nominate and appoint heirs at any time, which power could be legitimately exercised on deathbed. Besides, such a plea was only competent to an heir alioqui suecessurus alioqui suecessurus , which the appellant the Earl of Selkirk is not.Affirmance of Earl of Selkirk's Appeal, Mar. 8, 1777.After hearing counsel, the House of Lords pronounced this judgment in the Earl of Selkirk's appeal,Ordered and adjudged that the interlocutors complained of be affirmed.The Duke of Hamilton's appeal having been then heard: against the above two interlocutors of 19th Dec. 1776 and 5th March 1777 it wasPleaded for the Appellant, the Duke of Hamilton Pleaded for the Appellant, the Duke of Hamilton .—As to his right under the feudal investitures of the estates; 1. It is proved, that the estate, as well as the honours of the Douglas family, have from the times of the remotest antiquity, down to the death of the late Duke of Douglas in the year 1761, been settled upon, and uniformly enjoyed by the heirs male of the family, in preference to females or heirs of line. And for the purpose of more effectually securing the succession to the heirs male, the deeds executed by William, the first Marquis of Douglas, in the years 1630 and 1655 contained a clause of return in favour of these heirs, and a prohibitory clause prohibitory clause , which were framed with an anxious attention for preventing the separation of the estate from the honours. The first attempt towards a deviation from the line of male succession, was that which appears from the deeds which James, Marquis of Douglas, was prevailed upon to execute in the year 1699; but the attempt made by these deeds to call to the succession either the heirs female of this Marquis of Douglas, or his distant male relations, in preference to the heirs male of the family, was null and ineffectual.2. The four contradictory and inconsistent deeds of nomination

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“1st. To the Duke of Douglas, and the heirs male of his body;—next, to the other heirs male of the Marquis' body; next, to the Marquis' heirs male whatsoever, (which in the present case is the appellant the Duke of Hamilton); and lastly, to the Marquis' heirs and assignees whatsoever.”
3. Although the tutors who acted for the Duke of Douglas during his infancy in the year 1707, obtained a new charter from the crown, for the declared purpose of changing the feudal tenure of his estate, in which, however, they introduced a destination of succession in a very obscure and indirect manner, alluding to an undescribed nomination following upon the reserved power in the charter 1698; yet it is impossible that it could be of any avail to the respondents, because the contradictory deeds and nominations of the Marquis of Douglas in the year 1699 having been from the beginning null and inefficient, it was not in the power of these tutors, by an act of theirs, to give validity and effect to deeds which, independent of their acts, were in themselves invalid and unavailable.4. The mode in which this was attempted to be done by those tutors, by avoiding, in the charter 1707, any mention of the date or the contents of the nomination to which they intended it should relate, or any mention of the heirs meant to be introduced into the line of succession, was such as must have deprived it of the proposed effect, supposing them to have meant, as is maintained on the part of the respondent

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5. Because the procuratory of resignation executed in the year 1707, by the Duke's tutors, for and in name of their pupil, and the charter which of course followed upon it, if interpreted to contain a destination of succession, by which Lady Jane Douglas, and her issue, were called to the succession, in preference to the collateral heirs male, was in so far as relates to that declaration, and in so far as the Duke of Douglas might have been supposed to acquiesce under it, totally revoked and destroyed by the deed executed by the Duke of Douglas in October 1744, and by the revocations executed by him in the month of June 1752. The object of which deeds of the years 1744 and 1752 being to defeat Lady Jane's expectations of succession to the Douglas estate, and at the same time to send it to the heirs of the ancient investitures thereof.6. For all these reasons, the charter 1707, under which the Duke of Douglas continued to possess his estate, must necessarily be understood and interpeted to be a continuation of the destination of succession that was contained in the charter 1698; which, as has been already explained, settled and secured the estate to the heirs male of the family immediately after the heirs male of the body of James Marquis of Douglas; and it being thus established that the charter and infeftment 1707, which was the latest modern investiture, as well as all the ancient investitures of the Douglas estate, provided and secured the right of succession to the heirs male; and it being admitted on all hands, that the latest feudal investitures of the estate of Bothwell and Wandell, to which the Duke of Douglas succeeded in the year 1716, were indisputably in favour of the heirs male, it heirs male, it necessarily follows that the appellant the Duke of Hamilton, as heir male of the family, must be entitled to all those estates; either in case the Duke of Douglas died without making any settlement at all in relation to these estates; or in case the settlements executed by him, and left in force after his death, were in favour of the heirs of the ancient investiture of the Douglas estate.7. But further, in regard to the appellant's right under the deeds of the late Duke of Douglas, it is maintained, that the deed executed by the Duke of Douglas in 1744, which contains a revocation of all deeds and settlements made by him preceding that date, in relation to his estate, contains an express declaration of his will and pleasure with regard to the heirs he chose to succeed him in his estate;

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8. And even supposing the deed 1744 were informal, incomplete, or ineffectual by itself, all objections are removed by the contract of marriage 1579, whereby the Duke became obliged to provide and secure his estates on default of his own issue, to such heirs as he had named or should name and appoint in the settlements of his estate made or to be made by him. The deed 1744 was found in the Duke's repositories, along with the contract of marriage, uncancelled; it is the only legal subsisting settlement executed by him; it is a nomination and appointment of heirs to succeed to his estate; it is perfectly consonant to the contract of marriage; the conclusion is evident and necessary; it is the nomination, appointment) and settlement referred to in the contract; it is part of the contract; and of course the Duke of Hamilton, the heir of the ancient investitures, is entitled to take under the remainder or substitution in the contract, preferably to the right which the respondent Mr. Douglas claims under the last institution to heirs and assignees whatsoever. This deed, even if held as a mere revocation, could not deprive him of the estates of Bothwell and Wandell, which always stood destined to heirs male, long before the Duke succeeded, and as the revocation only referred to all the settlements the Duke of Douglas had made in favour of heirs female, it left these estates to go to the heirs male.9. If the right is with the appellant, the Duke of Hamilton, on the supposition that the Duke of Douglas had executed no deed of settlement of his estate posterior to the contract of marriage 1759, the deed of 11th July 1761, (the only one he did execute, and whereby he conveyed his estate, in default of his own issue, to the heirs general of his father's body), can make no difference, but must be held pro non scripto pro non scripto , because it was executed on deathbed, in circumstances where, by the established law of Scotland, a person can do nothing to injure the right of the legal successor to his estate. And it is no answer to this to say, that though the deed was executed on deathbed, yet as it was only the heir who had the immediate right to succeed, who could void the deed on that ground, that the objection did not apply, because the Duke of Hamilton had the best right to succeed as heir male under the investitures 1695 and 1707.

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One general objection has been made by the respondent Mr. Douglas, to the appellant's claim under the deed 1744, that as the Duke of Douglas had declared his predilection for the respondent, his heir of line, not only by the settlement which he executed within a few days of his death, in the month of July 1761; but also by his cancelling and destroying in the year 1760 the regular settlements which he had executed in favour of the Duke of Hamilton's family in the years 1754 and 1757; therefore the claim now made by the appellant is not entitled to any degree of favourable interpretation, and that it is merely owing to accident that he the appellant has any claim at all in consequence of the deed 1744, for it is evident from the circumstances of the case, that the Duke of Douglas, at the same time that he cancelled the settlements 1754 and 1757, would have cancelled and revoked this deed 1744, if he had considered it in the light of a settlement upon the Duke of Hamilton's family. But the answer to this is, supposing it were true that the deed 1744 had escaped the fate of the settlements 1754 and 1757, merely from accident, or from ignorance or misapprehension of its nature and effect on the part of those who were principally instrumental in the cancellation of those settlements, still these extraneous circumstances could not in any respect vary the case, or alter the interpretation of the deed under which the appellant claims: for every court of justice will reckon itself bound to judge of a man's intentions by the deeds executed by him, and left subsisting uncancelled and unrevoked at the time of his death.—such deeds must be considered as containing the intentions of the deceased, not only at the time when the deed in question was executed, but also those in which he persisted to the moment of his death. But if the argument founded on accidental circumstances were entitled to any weight in the decision of the present question, the appellant might be entitled to claim the benefit of that argument fully as much as the respondent; for it must appear to be a remarkable circumstance in this cause, that the only ground upon which Mr. Douglas can have any pretence for disputing with the heir male of the family the right to all the ancient estate of Douglas, is the accidental circumstance of the words “heirs and assignees” having been thrown into a marriage contract as words of style at the close of all the substitutions in that contract; which words were not only so inserted without any directions from the Duke of Douglas himself, but it

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“I Archibald Duke of Douglas, do by these presents debar and exclude the children, one or more, and issue of my deceased sister, Lady Jane Douglas, from all right of succession to my estates, means and effects whatsoever.”
It was not till within ten days of the Duke of Douglas' death, when worn out with disease and infirmity, and unable to resist the never ceasing importunity of those who had then got the ascendancy over his mind, that he executed, for the first time, a deed favourable to the interests of the respondent Mr. Douglas. In these respects, therefore, the appellant, the Duke of Hamilton, is entitled to say that Mr. Douglas' claim for any part of the Douglas estate derived from the words “heirs and assignees,” in the contract of marriage, is owing to fortuitous circumstances, in which he has had at least as much good fortune as can be ascribed by him to the appellant on account of the existence of his claim under the deed 1744. The present contest for the ancient estate of Douglas, is the only instance that has occurred in the course of many centuries, of an heir of line disputing the right to that estate with the heir male, excepting one instance only, when King James the Sixth, as heir of line of the Douglas Douglas family, contested that point with Sir William Douglas, afterwards Earl of Angus, the heir male, upon which occasion judgment was given for the heir male against his Majesty, then present in Court. It has also been shown that, in the course of 700 years, from the year 1061 to the death of the late Duke of Douglas in the year 1761, there has been no instance of either the estates or honours of the Douglas family being enjoyed by a female or heir of line, though repeated instances have occurred of their being excluded from both the estates and honours by collateral heirs male. It cannot therefore be deemed an unreasonable or unfavourable pretension on the part of the appellant, that while the respondent Mr. Douglas is allowed to enjoy, without dispute, all the estates acquired by the late Duke of Douglas, to the amount of about £6000 of yearly

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Pleaded for the respondent Mr. Douglas Pleaded for the respondent Mr. Douglas .—

1. The deed 1744 was never intended for, nor considered by the Duke of Douglas as a settlement of his estate, nor was it in the form of a settlement. The evident purpose and effect of it was, to recal the deeds which he had executed, in order to pave the way for new settlements; in the meantime leaving the estate, in the event of his death, to continue descendible according to the ancient rights and investitures. This is just the reverse of a settlement; for the plain sense and meaning of the transaction is, that the settlements were taken out of the way, in order that they might not bar the succession by the investitures, reserving to the Duke to make new ones if he felt inclined. No settlement was ever made in the form of a preamble to another deed, and it would lead to great injustice and arbitrary decision, were judges to go into the loose doctrine of raising up every supposed indication of wills indication of wills which can be found in any deed of whatever nature, as a settlement fit for carrying succession. The law of Scotland is most abhorrent to every such principle; for, in the case of personal estate, it does not acknowledge nuncupative wills, but requires a formal writing; and with regard to real or heritable estate, it is a fixed rule, that the will is not sufficient, though expressed in writing, but that the transmission can only be per verba de prœsenti per verba de prœsenti , by actual conveyance, or in such obligatory form as will operate a conveyance by legal process. 2. If the appellant had a will will in his favour, it would not be sufficient; but in fact he has none; for he begins by converting that into a will will which is a deed of another kind. His argument is neither founded in law nor in sound criticism; for it disjoins the recital from the body of the deed, and, taking the recital as standing by itself, it transmutes into a will. This is dealing unfairly with the deed; for the recital is necessarily connected with what follows:

“To the end, &c. he revokes.”

This is a mere declaration of what would be the consequence of his settlements being revoked; i.e i.e . that the heirs of his ancient investitures might be let in. He revokes, in order to let them in. Taking it in this sense, the means are well

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April 6, 1778.

The House of Lords pronounced this order:—

upon the nature and effect of the said deed; and the cause having been adjourned for further hearing to this day, the counsel for the appellant alleged, that last Saturday, upon inspecting the said original deed, they discovered that the words in the marginal note were “and female,” which they apprehended would be a circumstance very important in their favour. The counsel for the respondent Mr. Douglas alleged that it was a material circumstance on their side of the question; and that it had been taken notice of in the pleadings in the cause determined 1762; but it was agreed on both sides, that no notice had been taken of these circumstances on either side, in the argument in this cause. Their Lordships, therefore, without exercising any judgment as to the materiality of them, think fit to remit the cause to the Court of Session, and to direct them to consider, whether the marginal note, as it appears on the face of the said original deed, makes any difference as to the question decided by them in the cause, upon the nature and effect of the said deed. It was ordered and adjudged that the cause be remitted back to the Court of Session in Scotland, to consider whether the marginal note, as it appears upon the face of the said original deed of 16th October 1744, makes any difference as to the question decided by them, in this cause, upon the nature and effect of the said deed. And it is further ordered that the further hearing of this appeal be adjourned sine die sine die , with liberty for either party to apply to the House, when the said Court of Session shall have given their opinion upon this reference.”
“Counsel having been heard, in which the Duke of Hamilton and his Guardians are appellants, and Dunbar, Earl of Selkirk, and Archibald Douglas of Douglas, Esq. are respondents; the counsel for the appellant having waived all objections to the decree appealed from, except what arose from the deed 16th October 1744, and having been heard last Friday

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In consequence of this order, the cause was again heard in the Court of Session, upon the points remitted.Before the Court below, the Duke contended, 1st, That the occasion upon which the deed 1744 was executed, shewed that it must have been intended as a settlement, and a settlement adverse to the succession of the heirs general. It was made upon occasion of the Duke's being disgusted with his sister Lady Jane's conduct, and to prejudice her, as was repeatedly admitted by the respondent, Mr. Douglas', himself, in the earlier legal proceedings. 2d, That the appellant, the Duke of Hamilton, as heir-male of the Douglas family, is the person entitled to claim under the ancient investitures of the estates. 3d, That the deed 1744, taken either by itself, or in connection with the marriage articles 1759, is, by law, a valid and effectual settlement.

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Dec. 19, 1773.The Court of Session, upon considering the memorials, pronounced this interlocutor, by way of report to the House of Lords, upon the reference of your Lordships; twelve of the judges being of the opinion contained in it, and two the contrary, “The Lords having resumed consideration of the remit and order of the Lords Spiritual and Temporal in Parliament assembled, of the 14th April 1778, &c., and having in pursuance thereof, heard parties procurators in their presence on the subject matter of the said remit and

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Jan. 25,1779.Upon resuming consideration of this case, and a petition, moving the same in the House of Lords, setting forth that in terms of the above remit, the Court of Session had accordingly heard parties very fully upon the nature and effect of the deed of 16th October 1744; and upon the subject matter of the said remit; and had duly considered memorials for both parties thereon, and had pronounced this interlocutor:
“Find that the deed of revocation 1744 is not a settlement of succession, and that the appellant Douglas, Duke of Hamilton, has no claim under it; and they further find that the marginal note, as it appears upon the face of the said original deed of the 16th October 1744, and the words “after my death” in the clause of registration, make no difference as to the question now and formerly decided by them, upon the nature and effect of said deed.” The respondent prayed their Lordships “To appoint this cause to be further heard, which they do accordingly upon Wednesday the 17th day of March next.”
Mar. 27, 1779.

On 29th March, their Lordships

Ordered and adjudged that the appeal be dismissed, and the said interlocutors therein complained of be affirmed.Counsel: For Earl of Selkirk , Andw. Crosbie, George Hardinge, Sir David Dairy tuple, P. Murray, Alex. Wight. For Duke of Hamilton , A1. Wedderburn, J. Dunning, Gilb. Elliot, Alex. Lockhart, Sir John Stewart, J. Campbell, jun., Walter Stewart, Wm. Johnstone, Nairn, Sir Adam Ferguson.For Mr. Douglas , E. Thurlow, Henry Dundas, Alex. Murray, Burnet, Montgomery, Garden, M'Queen, Rae, Ilay Campbell, R. Sinclair, John Pringle.